Nuisance Doctrine
Nuisance
• Nuisance actions are an extension of the private tort
of trespass to land
– Trespass – physical invasion of property
– Nuisance – non-physical invasion
• “An unreasonable and substantial interference with
the use or enjoyment of one’s property without
physical trespass or unlawful entry”
Nuisance
• History of nuisance doctrine goes back to Middle
Ages
– Law courts had little control over land disputes
– Noblemen often appealed to King for justice or equity
– Eventually a system developed to provide equitable remedies
(equitable to all parties)
Nuisance
• Currently
– Nuisances are controlled via nuisance ordinances
– Nuisances are prevented, mitigated & regulated through zoning &
development ordinances
• Here, nuisance ordinances operate concurrent with zoning ordinances
Nuisance and Externalities
• Externality
– An “extra-territorial” effect of a property owner’s action that does
not involve a physical extension of that activity
– Positive Externality
– Negative Externality
From: Stacy Tolbert [mailto:stolbert@co.rockingham.nc.us]
Sent: Thursday, January 29, 2015 9:46 AM
To: NCPlan mailing list
Subject: [ncplan] Shooting in Residential Districts
Good Morning, Do any of you have regulations in your zoning ordinance regarding recreational shooting,
shooting pits, target shooting, etc. in residential districts? Specifically any restrictions such as acreage
requirements or buffers? We have a situation of a property owner wanting to construct a shooting pit
(mainly berms) in his back yard for personal shooting only - no public use, no fees charged. However, this
property is less than 1 acre and in a major subdivision. We already have requirements for shooting ranges
on a much larger scale that are for profit, we'd like to see what other Counties are regulating.
Thanks, Rockingham County Planning Department PO Box 105 Wentworth, NC 27375 (336) 342-8117
Nuisance and Externalities
• Positive Externalities
– Beautiful landscaping
– Artful façade
– Additions and renovations
– Enhanced economic activity
Nuisance and Externalities
• Negative Externalities
– annoyance, inconvenience, discomfort, damage
• Smoke
• Noise
• Activity
• Traffic
• parking
Nuisance
• Generally in the eyes (or ears) of the beholder
Nuisance
• Public Nuisance
– A criminal act that interferes with the community at large
• Private Nuisance
– A civil action between two parties
Nuisance
• Nuisance per se
– A nuisance wherever it is located
• Nuisance per accidens
– A nuisance only in the areas in which its location would
detrimentally affect surrounding property
Nuisance
• Implicit heirarchy
– But there are exceptions!
R
RC
RCI
Nuisance
• Anticipatory Nuisance
– Preventing a nuisance that may happen
• It may also not happen, so what are you preventing?
– Courts generally view the abatement of this type of nuisance
favorably if plaintiff can show with certainty that a nuisance can
occur
Nuisance
• Priority of Occupation
– Did the nuisance come to you, or did you come to the nuisance?
• Who was “first in time”?
• The nuisance was not a nuisance until someone came to it
• Don’t want to fault someone for another’s bad decision
Nuisance
• Attractive Nuisance
– Refrigerators
– Natural climbing walls
– Creating a situation that draws people to a situation that ultimately
creates a nuisance or damage to property & person
Nuisance
• Aesthetic Nuisance
– Junkyards, Junk Cars
• Visually offensive
• Physically passive
– “Yard Art” “Yard Furniture”
• Reduction in economic value to other properties
Nuisance Remedies
• Remedies (just and equitable)
– How does this situation get resolved?
• Injunction
• Payment
Nuisance Remedies
• Injunction
– Court order halting obnoxious activity
– Balances equities accruing to all parties involved
• Typically works against plaintiff (especially in a “David vs Goliath”
action
Nuisance Remedies
• Payment
– Compensation
• To plaintiff
• To defendent